Kura v Police
[2020] NZHC 939
•7 May 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2020-409-000032
[2020] NZHC 939
BETWEEN NATHAN BRIAN KURA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 7 May 2020 Appearances:
C G Nolan for Appellant
J H Whitcombe for Respondent (via VMR)
Judgment:
7 May 2020
JUDGMENT OF DUNNINGHAM J
Introduction
[1] Nathan Kura, the appellant, was sentenced by Judge Couch on 19 March to two years and four months’ imprisonment on 10 charges. These were theft over
$1,000, dishonestly using a document, driving whilst suspended, wilful damage, receiving under $500, failing to answer bail, dishonestly getting into a vehicle, failing to stop and two counts of theft under $500.1 The appellant appeals that sentence.
Facts
[2] The appellant had his licence suspended for three months on 1 November 2018. On 6 November 2018 he was stopped by police while driving a vehicle on Barrington Street.
1 Police v Kura [2020] NZDC 5176.
KURA v NEW ZEALAND POLICE [2020] NZHC 939 [7 May 2020]
[3] On 4 February 2019, the appellant was arrested for breaching bail. He was handcuffed and placed in the back seat of a patrol vehicle. The appellant became aggressive and kicked the car door multiple times, causing the top of the door to bend out and preventing it from being able to close properly.
[4] On 18 February 2019, a woman lost her ASB credit card. The appellant came into possession of that credit card the next morning and used it to purchase $53.40 of grocery items at Fresh Choice Parklands.
[5] A Toyota Surf vehicle was stolen from Amberley on about 23 June 2019. In the afternoon of 25 June, the appellant drove that vehicle into Z Energy fuel station at Belfast. The number plates were covered by cardboard. The appellant pumped $70 of diesel into the vehicle while his associate went into the store, and they then left without paying for the diesel. After leaving the garage the appellant took the cardboard off the plates, revealing false number plates. Police saw the vehicle turning off State Highway 1, and indicated for the appellant to pull over with red and blue lights. The appellant drove off, and the police activated the sirens. The appellant continued to drive at speed, going through a stop sign. He pulled over on two occasions before speeding off again when police approached the vehicle. Eventually police ended the pursuit due to concerns for public safety.
[6] At around 4.30 pm on 16 July 2019, the appellant drove into Z Energy fuel station at Shirley and pumped $40 of diesel into his vehicle. He drove away without paying.
[7] In the early morning of 17 July 2019, the appellant and an associate entered the Christchurch International Airport arrival/departure lounge. The appellant acted as a lookout while his associate entered the Spark Kiosk and stole 13 mobile phones and associated equipment from locked cabinets.
District Court decision
Sentence indication
[8] Judge Couch gave the appellant a sentence indication on 28 November 2019 in relation to seven charges, being all charges except those incurred on 25 June 2019 when the appellant stole fuel from a petrol station and was pursued by police.2
[9] The Judge took the theft (over $1,000) as the lead charge. He noted that the property stolen was valued at $14,000, which he considered to be a “substantial quantity”. The Judge took a starting point of one year and nine months’ imprisonment for that charge. He uplifted that starting point by six months to account for the other six charges, leading to a starting point of two years and three months. He considered that appropriate for the totality of the offending.
[10] The Judge found there were significant personal aggravating features. He applied a three month uplift for the fact that the majority of the offending was committed whilst on bail. The Judge noted the appellant had five convictions for dishonesty offences, as well as convictions for drug, firearm and driving offences. He applied an uplift of two months for previous convictions, saying that this brought the sentence to 34 months’ imprisonment.
[11] The Judge then reduced the sentence by four months to account for the appellant’s associate having been the principal offender in the lead charge. Finally, he applied a 20 per cent discount for guilty pleas, resulting in a sentence indication of two years’ imprisonment. The appellant accepted that indication.
Sentencing
[12] By the date of sentencing on 19 March 2020, the appellant had pleaded guilty to the three further charges. Judge Couch regarded those as relatively serious, noting that they involved the aggravating factors of a false number plate and driving at excessive speed, including through a red light. Allowing for the guilty pleas entered
2 Police v Kura DC Christchurch CRI-2018-009-9918, 28 November 2019.
in respect of those charges, the Judge applied an uplift of four months to the sentence indication.
[13] The Judge noted that after the sentence indication, counsel had agreed that sentencing could proceed on the basis that the mobile phones stolen were valued at
$7,500, being half their estimated value. The Judge had, however, received a schedule recently provided to police that set out the actual cost of the phones as being $14,300. He considered there was therefore no basis to depart from the sentence indication for the lead charge of theft.
[14] The Judge declined to grant a discount for the fact that the defendant had not offended since the matters arose and had ceased taking drugs, stating these were not mitigating factors but rather an absence of aggravating factors. He noted the appellant and his partner’s personal circumstances. He also noted counsel’s submission that the appellant had provided information to police, but given he had nothing to confirm that having happened he did not take it into account. Judge Couch sentenced the appellant to two years and four months’ imprisonment, as well as disqualifying him from driving for 12 months and ordering reparation totalling $3,636.33. The reparation for the mobile phones was expressly stated to be half the total value given the defendant was one of the two persons involved in the theft.
Principles on appeal
[15] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.3 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.4 It is only appropriate for this Court to intervene and substitute its own views if the sentence
3 Criminal Procedure Act 2011, ss 250(2) and 250(3).
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.5
Submissions
Appellant’s submissions
[16] Mr Nolan, for the appellant, submits that the Judge made a calculation error in his sentence indication. The Judge applied a two month uplift to a starting point of 30 months and recorded that as bringing the sentence to 34 months, when it should instead have been 32 months prior to applying credit.
[17] The sentence indication included a charge of receiving under $500. Mr Nolan submits this charge had been withdrawn, and that if the Judge had not included it then a lower starting point would have been taken.
[18] Mr Nolan submits that the Judge should have proceeded at sentencing on the basis that the value of the phones was $7,500, as agreed between police and the appellant. He contends that this value would have a bearing on the overall sentence in assessing the gravity of the lead offence.
[19] Judge Couch uplifted the starting point for the lead offence by six months to take account of the remaining charges at the sentence indication. He then added five months to reflect offending on bail and the appellant’s criminal history. Mr Nolan submits that this uplift was too high, equating to almost a 20 per cent uplift on the starting point. Mr Nolan further submits that the Judge was wrong to uplift the sentence by four more months to reflect the three further charges at sentencing.
[20] The appellant accepts that he has gambling issues, and informed the pre-sentence report writer that he attends a problem gambling service. Mr Nolan submits the appellant has good insight into his offending and would benefit from rehabilitation. He suggests these prospects for rehabilitation should have been recognised at sentencing as a mitigating factor. Furthermore, he submits that credit
5 Ripia v R [2011] NZCA 101 at [15].
should be given for mitigating circumstances such as the positive pre-sentence report, remorse, behaviour and time spent on bail with restrictive conditions.
[21] The appellant has instructed counsel that he supplied police with the name of his co-offender. Mr Nolan submits this assistance to the authorities should have been taken into account at sentencing by way of an independent credit.6 He refers to Farley v R, where the Court allowed a discount of 20 per cent because the offender provided information about a conspiracy to arson, the identity of the arsonist and her whereabouts.7
[22] Finally, Mr Nolan notes that the main recommendation in the pre-sentence report was intensive supervision due to lack of a suitable address for home detention. The sentence was recommended to allow the appellant to attend a departmental programme and to engage with appropriate intervention for problem gambling. Mr Nolan submits an appropriate end sentence in the circumstances is either home detention or a combination of intensive supervision, community work and reparation.
Respondent’s submissions
[23] Mr Whitcombe, for the respondent, accepts the Judge made a mathematical error and that it should be corrected on appeal.8 However, in all other aspects he says the end sentence was appropriate.
[24] Mr Whitcombe submits that the starting point of one year and nine months adopted on the lead charge was within range. He says the respondent has received confirmation from the police that the value of the stolen phones was approximately
$7,500, but contends that this lesser value does not materially affect the end sentence imposed. Mr Whitcombe refers to a number of cases to support this contention:
6 Citing Ong v R [2012] NZCA 258 and R v Strickland [1989] 3 NZLR 47 (CA).
7 Farley v R [2017] NZCA 97.
8 Citing Ferris-Bromley v R [2017] NZCA 115 at [15].
(a)R v Duncan: a starting point of two and a half years was upheld by the Court of Appeal where an offender stole approximately $16,500 in cash.9
(b)Ropiha v Police: a starting point of two and a half years was adopted where an offender had broken into a tourist bus and stolen approximately $5,000 of property.10
(c)Falaoa v Police: an end point of 21 months for an appellant who stole
$2,500 from a victim who depositing it at a bank was regarded as stern, but nonetheless upheld.11
[25] In light of these cases, Mr Whitcombe submits that a starting point of two and a half years could have been justified on the lead charge given the offending was premeditated, cabinets were broken into in order to steal property and the property was still of substantial value at $7,500. Furthermore, Mr Whitcombe argues that the four-month discount that was applied because the appellant was not the principal offender could be considered generous. He refers to Court of Appeal authority that those who occupy roles as lookouts do not necessarily undertake a lesser role.12 Here, the appellant drove himself and the co-offender to the airport, entered the building and acted as a lookout.
[26] Mr Whitcombe accepts that the uplift of six months for other offending at the sentence indication could be regarded as stern. However, when the lower starting point on the lead charge is taken into account, he contends the overall starting point of two years and three months cannot be considered excessive. Furthermore, he submits the additional four-month uplift for further offending at sentencing cannot be challenged given the serious nature of that offending.
9 R v Duncan [2009] NZCA 408.
10 Ropiha v Police HC Rotorua CRI-2004-463-71, 22 July 2004.
11 Falaoa v Police HC Napier AP54/98, 23 September 1998.
12 R v Royal [2009] NZCA 65 at [20] and Karaitiana v R [2014] NZCA 126 at [19]-[20].
[27] Mr Whitcombe submits the uplifts for offending on bail and previous convictions were appropriate, and indeed that an uplift greater than two months for previous convictions could have been justified.
[28] In regard to mitigating factors, Mr Whitcombe accepts that credit may be available to recognise time spent subject to restrictive bail conditions, but notes the Court of Appeal’s statement that such a discount is usually only warranted where the conditions are “very restrictive”.13 He submits it would be inappropriate to give a credit in this case given the appellant continued to offend on bail.14 Mr Whitcombe also submits a discount should not be given for rehabilitation and remorse given the recidivist nature of the appellant’s offending.
[29] In terms of whether there should be a discount for assistance to authorities, Mr Kura supplies a job sheet from the police officer who interviewed the appellant. It records that the appellant named an individual called Matt Sinclair as his co-offender, but that police decided not to charge that person because they considered the appellant’s statement to be unreliable and that another known offender was more likely to have been his co-offender. In these circumstances Mr Whitcombe submits that little to no credit is available for assistance to the authorities.
[30] Mr Whitcombe submits that imprisonment is the appropriate outcome in this case due to the seriousness of the offending and because the appellant was on bail at the time. The appellant also has convictions for breaching community-based sentences and in these circumstances protection of the community from the offender should take precedence. However, Mr Whitcombe responsibly points out that the amount of reparation may need to be adjusted to reflect the new value of the property stolen.
Analysis
[31] It is clear that the Judge made a minor calculation error in his sentence indication. For the purpose of this appeal, I intend to repeat the sentencing exercise
13 Winklemann v R [2010] NZCA 215 at [21].
14 Referring to Murray-MacGregor v R [2011] NZCA 66.
in a slightly different order than the District Court Judge by adopting a starting point for all nine offences before considering personal factors and so the calculation error will be corrected by my analysis.
[32] The Judge was correct to take the theft of the mobile phones as the lead charge. He adopted a starting point of one year and nine months for that offence, then reduced that by four months to account for the appellant having not been the principal offender. I therefore take the starting point as having been one year and five months.
[33] The Crown has now accepted that the starting point for that offence should have been adopted based on a value of $7,500 rather than $14,000. That amount is roughly half of that considered by the sentencing Judge, but as noted by Mr Whitcombe, the value of property stolen is only one relevant factor in sentencing for theft. It is also relevant that there was clear premeditation and planning involved, and that the theft involved some level of “breaking in” given the co-offender had to break into cabinets in order to take the property. I consider the appellant’s culpability was high despite him not being the principal offender given he drove the two of them to the airport and acted as a lookout, clearly understanding the nature of what he was assisting with.
[34] There is no tariff for theft. Given the value of the property stolen (albeit lower than the value relied on by the Judge) and the clear premeditation involved, I believe the effective starting point of one year and five months was well within range.15 However, as the Judge indicated he would reduce the starting point if the value of the stolen property was less. I would reduce this to one year and four months.
[35] In regard to the other charges, the Judge uplifted the starting point by six months at the sentence indication and a further four months for the additional June 2019 charges faced at sentencing. He noted that the four-month uplift for the June 2019 charges was inclusive of guilty plea discount, so I will assume that amounted to a five-month uplift to the starting point. That makes a total of 11 months’ uplift for charges beyond the lead offence. I do not see this as excessive. Those charges
15 With reference to the cases cited by counsel at above n 9-11, and Aerenga v Police [2012] NZHC 1375.
included quite separate and relatively serious offending, especially in regard to the police chase on 25 June. The manner in which the appellant drove away from police, at speed and through a red light, in order to escape apprehension for theft, was very dangerous. He is lucky not to have harmed anyone. An 11-month uplift for this and the other offending was appropriate, regardless of the fact that the charge for low-level receiving should not have been included.
[36] The overall starting point is therefore two years and three months. I have considered whether to make some allowance for totality, but on balance, I do not believe it is necessary to do so. In my view, totality was sufficiently taken into account the relatively lenient sentence for the mobile phone theft, and an overall starting point of two years and three months is within range.
[37] The uplifts applied for offending on bail and criminal history were similarly appropriate. The substantial amount of offending on bail was a significant aggravating factor and warranted an uplift of three months. The appellant had a history of dishonesty, drug, firearm and driving convictions which alone may have justified a higher uplift than two months. Taken together, the five-month uplift for personal aggravating factors was appropriate, bringing the sentence to two years and eight months.
[38] The pre-sentence report states that the appellant considers he has problematic gambling issues and has self-referred to Problem Gambling Services. He has previously completed the Medium Intensity Rehabilitative Programme while in custody, and was able to demonstrate some of the concepts he learned on that programme to the report writer. The appellant wishes to go through that programme again, saying he felt that he could benefit from revisiting the concepts and applying them to his current situation.
[39] However, despite this insight into his offending, and willingness to address issues that may have motivated the dishonesty offending, I consider any discount should be minimal given the appellant has had opportunities to address the causes of his offending in the past, and yet has continued to offend. I would allow a two month
discount for personal mitigating factors (roughly six per cent), bringing the sentence to two years and six months.
[40] The most significant issue is the appellant’s submission that he provided assistance to police. According to the police jobsheet, the appellant went to the police station to give an interview voluntarily because he wanted to give details about his co-offender. The appellant did provide a name, but police did not charge that person because they believed the appellant was being dishonest. The officer speculated that the appellant may have done so because he did not want to nark on the actual co-offender, that he may have had something against the person he named, and that he knew his cooperation with police may result in a discount on his sentence.
[41] Given these circumstances, it is difficult to justify a discount for providing assistance. What is clear is that police derived no value from what the appellant said, as they did not charge the person named. That tells against the policy reasons for allowing a discount. Also, such a discount recognises in part that the appellant is put at risk by naming a co-offender; but that is not relevant here because the person named was never charged.16
[42] Based on the sentencing exercise I have undertaken, and applying a 20 per cent discount for guilty pleas, the end sentence would be two years and one month’ imprisonment.
[43] I believe this is sufficiently lower than the sentence imposed of two years and four months to allow the appeal. However, it means I do not have to consider whether to commute the sentence to one of home detention.
[44] Judge Couch ordered the appellant to pay reparation of $7,000 for the mobile phones, $526.33 for the damage to the police car and $110 for the stolen fuel. I am satisfied the reparation for the mobile phones should be reduced to $3,750 to give effect to the Judge’s intention that the appellant pay half their value on the basis that he was one of two persons involved in the theft. The other reparation orders, and the disqualification period, are undisturbed.
16 Farley v R, above n 7, at [16].
Conclusion
[45]The appeal is allowed.
[46] The sentence of two years and four months’ imprisonment is quashed and replaced with a sentence of two years one month’ imprisonment. The reparation order in respect of the stolen phones is reduced to $3,750. The other orders for reparation are unaffected.
Solicitors:
C G Nolan, Barrister, Christchurch Raymond Donnelly & Co., Christchurch
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